EAGLE, Colo. (VN) — Martin Erzinger was sentenced to a year’s probation and a suspended jail term on Thursday after a Colorado judge accepted a controversial plea bargain in the case of a cyclist who was the victim of a hit-and-run last July.
Erzinger, a Denver-area wealth manager, originally had been charged with a felony and two misdemeanors. But Eagle County District Attorney Mark Hurlbert forwarded a plea agreement to drop the felony charge in exchange for guilty pleas to the misdemeanors — careless driving and failure to report an accident — noting that “felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.”
The victim, New York anesthesiologist Dr. Steven Milo, had filed an objection to the plea arrangement, arguing that Erzinger had “never accepted responsibility for his actions,” and had engaged in activity that Milo said was intended to hide his involvement in the incident.
Erzinger has consistently maintained that he was unaware he had struck anyone after falling asleep at the wheel of his car, drifting off the road and hitting a culvert.
In accepting the plea, Eagle County District Judge Fred Gannett told Milo that the agreement was perhaps one that he might not have made, but was not outside the realm of what he considered to be reasonable. Gannett then sentenced Erzinger to a year’s probation on the careless-driving charge and 90 days in county jail for failing to report the accident.
The latter was suspended until Jan. 1, 2011, at which time Erzinger must submit to the court his choice of one of two options: 60 days’ work-release, or 45 days of charity work that will require him to leave Denver and take a leave of absence from his job.
An attempt to ‘minimize responsibility’
Earlier in the day, Gannett rejected motions from Hurlbert and defense attorney Richard Tegtmeier that sought to bar Milo’s active participation in Thursday’s hearing, claiming that he lacked standing to formally object to the plea arrangement.
But Gannett allowed the objection, and took the unusual step of conducting both the motion and sentencing hearings with three separate parties – prosecution, defense and victim – playing equal roles in the process.
Milo’s attorney, Harold Haddon, said the court had the discretionary power to reject the plea agreement, particularly when it represented a departure from a fair and just outcome.
As he has since learning of the plea agreement, Haddon said that Erzinger was receiving special treatment based solely on his wealth and social standing.
“The court needs to ask `does this deal smell bad … and, if so, why?’” Haddon said.
Haddon said that Erzinger was being offered a deal that few – if any – other defendants would have been given, despite the fact that “Mr. Erzinger simply hasn’t accepted responsibility for his actions … ever.”
Milo addressed the court describing what he remembered of the July incident and then describing in detail the medical complications he’s suffered since.
Milo said he and a friend had been riding along U.S. Highway 6, near Avon, when he “heard the roar of an engine … saw something black … and then the lights went out.”
That black flash, he later learned, was a 2010 Mercedes sedan, which had struck him from the right and rear, as Erzinger drove through the grass after having drifted off the road.
“Accidents happen, I accept that,” said Milo. “But he had the opportunity to make things right. The moment you decide not to stop, that changes the whole game.”
Even if Erzinger had panicked and fled he continued to have the opportunity to rectify his mistake, Milo said, adding that the Denver broker’s continued denials since have “been embarrassing and insulting.”
Milo then described the frustration of dealing with the District Attorney’s office in seeking what he said would be a “just outcome.”
The 34-year-old doctor said that despite assurances that he would be consulted before any plea agreement was reached, Hurlbert’s office had struck a deal with the defense weeks prior to submitting it to the court and then gave Milo and his attorney just a day’s notice of the arrangement.
Milo then played a recorded telephone conversation with an assistant district attorney, in which the prosecutor described the felony evidence against Erzinger as “compelling.”
The prosecutor then went on to say that the DA was considering a plea agreement because the defense had offered an opinion by an employment attorney who “said that Mr. Erzinger would lose his job immediately” were he to be convicted of a felony.
The apnea defense
Tegtmeier told the court that the agreement was appropriate since Erzinger had “obviously not” intended to hit Milo with his car. Erzinger, he said, merely thought he had drifted off the road and then recovered control of the car after hitting a culvert.
“He did not realize that he had hit anyone,” said Tegtmeier.
Tegtmeier disputed Haddon’s claim that Erzinger had attempted to hide from authorities after the accident, noting that the parking lot to which he had driven was more than three miles from the scene and that his family had a home “with a closed garage” less than 1000 yards from the point at which Milo had been struck.
Instead, Tegtmeier said that Erzinger had momentarily lost consciousness due to an undiagnosed sleep apnea problem. He awoke after striking the culvert, said Tegtmeier, and assumed that he had been involved in a single car accident.
“He did not see Dr. Milo,” said Tegtmeier, adding that it was reasonable for anyone having drifted off the road to continue on his way once he regained control of the vehicle.
Haddon, however, said that Erzinger’s behavior was indicative of someone attempting to conceal his culpability in a crime, noting that he had called On-Star for assistance, but then hung up once he learned that the number he had called would result in a follow-up call to police.
Haddon dismissed Erzinger’s claims as the “Apnea defense,” using his fingers to mimic quote marks and adding that the defendant had actively sought to minimize his responsibility from the moment he struck Milo.
Haddon urged the court to reject the deal saying that it had the authority to do so, using “common sense discretion,” in order to achieve a just outcome.
Gannett, however, said that while he had the authority, he also accepted an argument by the district attorney that his rejection of a plea agreement that didn’t qualify as “outrageous” would violate a separation of powers that gives prosecutors broad discretion in deciding how a case should be pursued.
Addressing Milo, Gannett said that had he been a prosecutor he might not have reached the same conclusion as Hurlbert, nor would he have handled the communication with the victim in the same way, but added that the plea did not “violate my sensibilities ….”
“It is within the realm of reasonableness,” he said.
Later, when imposing sentence, Gannett told Milo that “there is nothing I can do in this court to make your life better.”
Gannett said his priority in sentencing isn’t necessarily to seek revenge, but to ensure that a defendant’s future conduct is improved.
“Punishment,” he said, “has rarely been my priority.”
Gannett said that imposing probation on the most serious of the two misdemeanors will allow him to impose jail time in the event that Erzinger fails to comply with the orders of the court.
Gannett also order Erzinger to notify regulatory authorities within 15 days that he had, in fact, been charged with a felony, a reporting requirement with which Erzinger had failed to comply.
Following sentencing, Erzinger and his family left the court through a back door and declined to speak with reporters. Milo said that he wasn’t ready to discuss the case, but Haddon described his client as “outraged” by the sentence.
Milo has two years from the date of the incident in which to pursue civil action in the case. He has retained separate legal counsel for that aspect of the case and it is likely that he will file a suit.